For and against: Bain's claim for compensation

The release of reports this week about David Bain's claim
for compensation has laid bare arguments for and against. The
former Dunedin man was convicted in 1995 of murdering his
family and spent 13 years in jail before being acquitted in a
2009 retrial. Former Canadian judge Justice Ian Binnie,
commissioned by the New Zealand Government to determine
whether Mr Bain deserved compensation, found in the
claimant's favour. But his 187-page report has been
criticised by New Zealand lawyer Robert Fisher QC, who was
asked by the Government to peer-review it. Below is a summary
of both cases.

Justice Binnie's case:
• David Bain was ''more likely than not'' innocent on the
balance of probabilities.
• The ''egregious errors'' of Dunedin police led directly to
the wrongful conviction of David, which made compensation
''in the interest of justice''.
• It was more probable than not Robin Bain killed his wife
and three of their children before committing suicide, as he
had been stressed and depressed.
• The Crown's theory David murdered his family was not
consistent with physical evidence collected by police,
including blood smears in the house.
• Bloody sock prints were too small to be David Bain's and it
was unlikely he murdered four family members then did his
paper run, only to return and kill his father.
• David was a ''credible witness'' and Crown interpretations
of his initial testimony were ''erroneous''.
• Overall, David's version of events were accepted.
• No plausible motive for David to kill his family had ever
emerged.
• The ''cumulative effect of numerous instances of
investigative ineptitude'' and failure of the Dunedin CIB to
respect detection rules and principles made for ''serious
wrong-doing by authorities''.
• Police rushed to a judgement that David was guilty and did
not test other theories.
• Police destroyed crucial evidence and allowed the Bain
house to be burned to the ground within three weeks of the
murders.
• Certain things were never tested or were ignored, such as
the length of Robin's reach, and police admitted photographs
of the scene were a ''shambles''.
• Important elements of police and ESR testimony during the
initial trial were found to be misleading.
• Many features of the case took David's compensation claim
outside the ordinary run of cases.
• The Privy Council found David was wrongfully
convicted.
• David was acquitted in a 2009 retrial, having spent almost
13 years in jail.

Dr Fisher's case:
• Justice Binnie went beyond his mandate and did not have
authority to conclude whether there were extraordinary
circumstances warranting compensation.
• Justice Binnie was not asked to recommend whether
compensation should be paid.
• Justice Binnie made ''fundamental errors of
principle''.
• People involved in the case, including Dunedin police
officers, were criticised without the right of reply.
• Evidence, which when considered individually was not proved
on the balance of probabilities, was discarded, instead of
each piece of evidence being considered as to whether it
increased or reduced the likelihood of David's
innocence.
• The cumulative effect of all relevant evidence was not
considered.
• Justice Binnie based his conclusion that David was innocent
on luminol footprints and not on evidence overall.
• David should have been made to prove his innocence in
claiming compensation, but instead Justice Binnie put an onus
on the Crown case proving otherwise.
• Justice Binnie did not have the mandate to consider whether
police should have investigated further, but regardless took
that into account.
• The jury acquittal was regarded as relevant to David's
innocence.
• David's version of events were accepted without question
except where it directly conflicted with other
witnesses.
• New Zealand law was not properly understood or
followed.
• Crucial evidence, including bloodstains on David's
clothing, broken glasses, David's fingerprints on the rifle
used to murder his family, David's gloves, and his knowledge
of the trigger key, were discarded.
• Robin's motive and mental stability, as well as David's
post-event admissions, including that he heard his sister
Laniet gurgling, were also discarded.
• Background facts sourced from David were heavily relied
upon.